Sunday, March 9, 2008

"How does that copyright thing work?" is by far the number one question that I am asked concerning digital images and collage sheets. While I am not a lawyer, I have spent quite a bit of time working with my lawyer and educating myself on copyright laws. So I'll tell you how I work with copyrights when creating my collage sheets.

Copyright basics:Almost everything that was published in the United States before 1923 is in the public domain in the United States. "Public Domain" means the copyright is no longer owned by anyone, (it's owned by the public), and thus you can do just about anything with the images, including sell them for profit. This is why, in part, so many of the images that you may see for sale are "vintage," because this is the easiest category to find items that you can sell.

From 1923 to 1978, a published document, such as a book, was required to have a copyright notice in order to be copyrighted (with a few exceptions). This is often why you'll see digital items from the 1940s or 1950s for sale such as seed packets or greeting cards that did not tend to have copyright symbols on them. However, the images and the published words are copyrighted separately. So you have to research the image itself even if the book is in the public domain. This makes sense if you think about your own work of art. Let's say you make a painting of a tree and another esty seller wants to make pocket mirrors from your painting. You set up an agreement that allows her to make and sell these mirrors, giving you a portion of each sale. You, however, retain your copyright to the original image that you created. Thus, the pocket mirror and the original tree image have separate copyrights and might have different copyright status.

An item from 1923 to 1978 may also have fallen into the public domain if it was originally published with a copyright notice but the copyright was not renewed. Images from this time period are much more difficult to confirm. My 1950s pin-up girls took 6 months to research, and that does not even include the time it took to make the pictures into sheets.

From 1978 on, the majority of published material is still copyrighted. So unless I've taken the photographs myself, I tend to avoid the newer images.

It's not quite as cut-and-dry as it seems above, which is why I can take days if not weeks to determine the status of one image, but these general boundaries are a great starting point. The U.S. government has a thorough PDF that outlines many of the rules and the exceptions to the rule.

Terms of Usage
The other aspect to consider is "terms of usage." This basically means that even if a piece of art or illustration is in the public domain, such as the Mona Lisa, the organization that owns the art may limit what you can do with it. Last summer, for example, I visited the Minneapolis Institute of Art. They allow photographs of their entire collection, so I was happily taking photos of this amazing, ancient collection of tapestries. Upon contacting them to confirm that I can use these images, however, I learned that while I may take photographs, I may not use these photos for commercial purposes. Basically, by entering the building, I agree to their terms of usage which says what I may or may not do once I enter the building. If I do not agree to abide by these terms, I cannot enter the building.

This is the same concept that works with digital images and many websites. A museum may have images of their art on their website, even art that is in the public domain. But this does not mean that you can use these images however you want. If you look at the bottom of the webpage you will often see a "terms of usage" that spells out what you can and cannot do on that website.

Similarly, when you buy an image or image collection from someone, you are agreeing to their terms of usage.

Derivative Works
One additional concept that comes in handy in understanding digital images is "derivative works." These are brand new works that are made up of many other images and are thus able to be copyrighted. Collage is the most common derivative work. If you take, for example, several public domain images and create a new collage work, you may copyright your new work. This also works for collage sheets, where I've taken dozens of different public domain images and made them into a new work that I thus copyright.

Derivative works can be tricky however if you attempt to make something like a collage out of copyrighted material. I've often heard people say that as long as they are using an original item instead of a copy, they can do whatever they want to with it. The theory is that I can take an ad from 2008 or a children's book from the 1950s and make it into something else as long as I use the original. In my research this is often not true. According to title 17 of U.S. copyright code, only the owner of the copyright may grant permission "to prepare derivative works based upon the work." FunnyStrange has a series of excellent articles on collage and copyright that explore these ideas further.

But wait there's more
Finally, there's several other concepts that can come into play: trademarks, logos, and "right of publicity." So no, even if a Coca Cola ad was published before 1923 in the U.S., you may not be able to use it if it contains the Coca Cola symbol or trademark. Same for that photograph that you personally took of Paris Hilton (or even people who are no longer alive like Elvis or Marilyn Monroe). Without their permission or the permission of their families, you may not be able to use their likeness. And to complicate matters, rights of publicity often vary from state to state. In the case of Marilyn Monroe, there's debate over which state's laws apply, and thus whether her likeness is able to be used freely or not.

After all of this you may start to wonder how anyone can make anything at all! Needless to say, many, many people do not follow these rules, including many on etsy. But if you're reading this, you're probably interested in doing things "the right way." Hopefully these basic guidelines can give you a good start to understanding copyrights and how they relate to collage sheets and crafting.

15 comments:

This is one of the clearest explanations of the copyright laws as it pertains to collage work, that I have seen. Including all the stuff posted in the Forums at Etsy! Thanks a lot piddix! http://NoDuplicates.etsy.com

Dear piddix,Thank you so much for all of your time, put into researching the copyright and user terms. That was very helpful. When I first saw your shop,you inspired me to list, 100 yr old pictures from children's books, that I have. I also,"borrowed" some of your wording in the listing.Thank you very much, as I've commented before, your artwork choices are lovely.auntsuesoldnewlovelySusan

I wish everyone would understand this, especially the new threat to artists from every level (won't mention names) that is harassing artists and big corporations and setting the wrong precedents in court.

Thank you.I find many artists and/or business owners are so protective over their "process" or product that they risk rude and unwanted behavior to avoid letting "it" out. I am so excited when I find artists that offer tutorials! It is fun and fulfilling to learn something new and productive.I'm naturally curious and generally interested in how something is done rather than duplicating it myself. And when I am interested in making it, it's usually for myself or for my kids to do. I realize that not all inquiries are like that and I understand why protective measures are taken; I just don't appreciate them.So, thank you, for enlightening us on a subject that is almost as complicated as Social Security Disability!I hope to use some of my collection and will think of you when I'm able to take a short cut.

I was told by the MIA that If I wanted a print of a specific painting they didn't sell prints of that I was welcome to photograph and make prints for myself (too bad it's in a spot where the light glare makes this impossible)

Thank you so much for posting this information it really helps to be able to find all the information in one location. I take photographs and I use the images in collage work and I have wanted to sell them for other people to use and this really explains how I can do it and still keep the copyright for myself.

Thanks for all of this great info. I wish all sellers were as careful as you are about checking copyright. I'm a little shocked at how much blatant disregard there is by sellers for other artists' copyright.

Recently I have noticed that some works such as postcards and photographs that didn't have copyright on the image so seemingly were in public domain have been re-issued a copyright for instance Getty Images, How does that work?